2019 (7) TMI 1709 - HC - Central Excise

Clandestine manufacture and removal - sponge iron - demand on the basis of circumstantial evidence - no corroborative evidences present - demand alongwith penalty - HELD THAT - In the instant case, there is no specific case for the Appellant-Assessee before the Adjudicating Authority or before the Commissioner (Appeals) or even before the Tribunal that the statement was obtained under duress or coercion from the Director or from the other persons/witnesses concerned, though, a vague averment has been made in this regard in the present appeal before this Court. If such a case was actually raised before any of the authorities as above and if the same was not considered by the Authority/Tribunal concerned, it was for the Assessee to have the mistake brought to the notice of the Authority/Tribunal concerned. It was with reference to the above vital fact/pleading, as to the element of duress/coercion , that the matter was examined by this Court in Hi Tech Abrasives Ltd. 2018 (11) TMI 1514 - CHHATTISGARH HIGH COURT more so, when there was no other evidence, but for the entries in the note book ; in turn leading to the interference. There was no proper pleading of threat/force/duress/coercion or pressure as being utilized by the officers of the Revenue to extract the statements. On the other hand, statements were given by the persons concerned on their own volition. This being the position, the alleged violation of Section 9D of the Act, 1944 is not at all attracted - there is nothing wrong on the part of the Adjudicating Officer/Appellate Authority or the Tribunal in having accepted the statements given by various persons including the Director of the Appellant/Assessee-Company to reach the conclusion. The mandate is crystal-clear from sub-section (1) of Section 9D of the Act, 1944 (to consider the extent and applicability). The statute makes it point blank that, it is for the purpose of proving, in any prosecution for an offence under the Act, before a Court. This clearly means that the statement given by a person can be accepted as relevant by a Court in a prosecution proceeding for an offence either under clause (a) i.e. when the person who made statement is dead or cannot be found or incapable of giving evidence or such other circumstances as mentioned therein or under (b) i.e. when the person who made the statement is examined as witness in the case before the Court, when the Court having regard to the circumstances of the case, is of the opinion that the statement should be admitted in evidence in the interest of justice - fixation of duty evaded is one thing, and mulcting of penalty for the offence in respect of such evasion is a different thing. When the statement not recorded before the Adjudicating Authority cannot be relied upon to inflict penalty, it may still govern the field (if supported by other materials to reach the conclusion) insofar as fixation of quantum of duty evaded is concerned. The order passed by the Tribunal is perfectly within the four walls of law and is not assailable under any circumstance. No substantial question of law is made out by the Appellant to call for any interference under Section 35G of the Act, 1944 - Appeal dismissed - decided against appellant.

Issues Involved:
1. Clandestine removal of goods without payment of excise duty.
2. Reliance on circumstantial evidence for establishing liability.
3. Admissibility of unexamined statements under Section 9D of the Central Excise Act, 1944.
4. Substantial questions of law under Section 35G of the Central Excise Act, 1944.

Detailed Analysis:

1. Clandestine Removal of Goods Without Payment of Excise Duty:
The Assessee-Company was accused of clandestinely removing 1580.950 MT of sponge iron and 81.010 MT of Dolochar without payment of excise duty. During an inspection on 4-10-2006, incriminating materials were found, and a shortage of 2.580 MT of sponge iron was detected. The Adjudicating Officer concluded that there was clandestine removal of the goods, imposing a duty of ?25,67,367/- with an equal amount of penalty and interest. The Director of the Company was also penalized ?5,00,000/- for his involvement. This decision was upheld by the Commissioner (Appeals) and the Tribunal.

2. Reliance on Circumstantial Evidence for Establishing Liability:
The Appellant argued that the liability was fixed based on circumstantial evidence, such as internal documents and statements from the Director and transporters, without corroboration. The Tribunal, however, found that the evidence, including statements from various individuals and documents seized from the premises and transporters, was sufficient to establish clandestine removal. The Tribunal noted that the Appellant failed to reconcile the discrepancies and that the evidence was corroborated by multiple sources.

3. Admissibility of Unexamined Statements Under Section 9D of the Central Excise Act, 1944:
The Appellant contended that the Tribunal erred in relying on statements that were not examined under Section 9D of the Act. The Tribunal, however, found that the statements were given voluntarily and were corroborated by other evidence. The Court noted that there was no specific pleading of duress or coercion in obtaining the statements. The Court referred to the Supreme Court's ruling in Kalvert Foods India Private Limited, which held that statements given voluntarily and corroborated by other evidence are admissible.

4. Substantial Questions of Law Under Section 35G of the Central Excise Act, 1944:
The Appellant suggested several substantial questions of law, including whether the Tribunal was correct in confirming the demand based on circumstantial evidence and whether there was a violation of Section 9D. The Court found that the Tribunal's findings were based on substantial evidence and that the Appellant failed to prove any violation of Section 9D. The Court held that the Tribunal's decision was within the bounds of law and did not warrant interference under Section 35G.

Conclusion:
The appeal was dismissed, with the Court affirming the Tribunal's findings and reasoning. The Court held that the evidence on record, including the voluntary statements and corroborating documents, was sufficient to establish clandestine removal of goods. The Court also found no violation of Section 9D and concluded that no substantial question of law was involved to warrant interference under Section 35G of the Central Excise Act, 1944.

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